Monday, January 31, 2011

Gov. Deval Patrick on Monday proposed ending the state’s practice of hiring private attorneys to represent most indigent criminal defendants in Massachusetts, a proposal the administration says will save $45 million a year, but is drawing criticism from defense attorneys.

Under Patrick’s proposal, the state would hire 1,000 salaried lawyers who would work for the state’s public defender agency instead of the current system of hiring private lawyers known as "bar advocates."

Patrick, who unveiled the proposal as part of his Fiscal Year 2012 budget, said that over 3,000 bar advocates currently handle about 90 percent of the Committee for Public Counsel Services’ annual case load. The agency’s fulltime staff of about 200 lawyers handles the remaining 10 percent of cases.

Patrick said the state’s use of private lawyers who bill at a rate of $50 to $100 per hour "comes at a significant cost to taxpayers."

"We need a better, more cost-effective system, and this proposal gets us that," Patrick said in a statement.

Supporters of the change say private lawyers who are paid by the hour are bound to run up higher costs than salaried lawyers.

But several defense attorneys slammed the proposal and challenged the governor’s claim that it would save the state money in the long run.

Boston attorney Stephen Weymouth, who does bar advocacy work as part of his law practice, said he doubts that 1,000 salaried attorneys will be enough to handle the caseload of the state’s public defenders. The state does not pay for health care, pension plans and other benefits for private bar advocates, but will have to provide those benefits for salaried attorneys, he said.

"I understand everyone’s attempt to save money — I get that — but this is just not the way to do it," Weymouth said.

"As much as people hate to admit this, the infrastructure in Massachusetts to deliver indigent legal services is one of the best, if not the best, in the country."

Patrick’s proposal would eliminate the Committee for Public Counsel Services and replace it with a newly created Department of Public Counsel Services, under the executive branch instead of under the judicial branch.

The new department would be responsible for verifying whether defendants are indigent and eligible for free defense services, a task that is currently administered by the Probation Department.

Prosecutors have complained for years that they have high higher caseloads, but receive less funding from the state than the private lawyers who do bar advocate work for the public defender agency.

The state’s district attorneys collectively receive about $92 million a year and handle about 300,000 cases, said Suffolk District Attorney Dan Conley. The Committee for Public Counsel Services receives about $168 million for its criminal defense work and handles about 200,000 criminal cases per year.

"There’s no incentive to assess the value of the case and make a decision on how to resolve the case quickly. The only way these lawyers make money is to bill a number of hours on a case ... that drives up the costs," Conley said.

But Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, said bar advocates bill an average of about nine hours for district court cases and receive $450 for that work.

"I don’t think anybody can suggest that $450 as the average cost is outrageous when you’re talking about somebody who is looking at jail time," Benedetti said.

"To suggest that they are out there overbilling and getting wealthy is just not accurate," he said.

Benedetti said states across the country have encountered problems by underfunding and overworking their public defenders.

"We cannot imagine that (the governor’s proposal) will save the money they are suggesting without essentially throwing quality by the wayside," he said.

A controversial program that provided high-powered legal representation for homeless people in traffic court has been discontinued.

Lateefah Simon, executive director of the San Francisco chapter of the Lawyers Committee for Civil Rights, says the Homeless Rights Project was primarily a victim of funding shortages, but it's also drawn plenty of scrutiny from this column and the organization's board of directors.

The good news is this could actually lead to more productive ways to help the homeless. The city has been stuck in the old circular arguments for too many years. Homeless advocates claim their clients are being arrested simply for the crime of being homeless, and police and city officials gripe that there are no consequences for what is clearly bad behavior.

It is time to move on to something that works.

The Homeless Rights Project was created when the Lawyers Committee for Civil Rights joined forces with the Coalition on Homelessness. The coalition offices served as an intake center for the homeless to drop off their citations, be interviewed and leave. The citations were then given to the Lawyers Committee for Civil Rights. An LCCR staff attorney or pro bono attorneys from some of the city's largest law firms would typically get the citations dismissed and the defendants would rarely even need to make a court appearance.

The idea touted by the law firms was that the work was helping the homeless from being persecuted for their circumstances. But the reality was that court records show over the past two years, more than half of those citations were alcohol-related, and had nothing to do with camping on the streets.

Jennifer Friedenbach, director for the coalition, often says that if the police cite offenders, it prevents them from getting housing. That's why large local law firms send their pro bono attorneys into traffic court to battle the citations tooth and nail.

But representatives from the Tenderloin Neighborhood Development Corporation, the Tenderloin Housing Clinic (a Care Not Cash provider), and the city's Housing Authority all say they only prohibit tenants who have a record of violent crimes, sex offenders and those who sell or manufacture illegal substances.

Friedenbach's response to that is that none of those providers count. Care Not Cash, she wrote in an e-mail, is not "permanent" because "these units are leased, and at the end of the lease the actual owner (the landlord) can pull out if they feel like it."

Presumably, the alternative would be for the city to hand over ownership of a home to homeless individuals. This is a compassionate city, but that's not going to happen.

A better outcome would be to direct the pro bono attorneys - a compassionate and dedicated group - to causes that could help everyone. Work needs to be done in eviction cases, where poor tenants often face a landlord and his or her attorney without representation. The Community Justice Center, which works to get frequent offenders into services that can help them, needs attorneys to take the pressure off public defenders.

The Board of Directors for the Lawyers Committee made the right call. Facing a severe budget pinch, Simon says they elected to keep programs that have worked - like their Legal Services Clinic, which provides free legal aid for the poor and homeless - and stop funding 3,000 court appearances a year in traffic court, arguing the cases of defendants in what were mostly alcohol cases.

"I am saddened that we couldn't continue the project, but we weren't able to take it all on," she said. "I know they are still pushing to make something happen with others. But will we be able to do it? No."

Friedenbach says "pretty much every major law firm in the city has been in on plans for a revitalized structure" for the program. That may be. And maybe another version will surface.

Wednesday, January 26, 2011

Lawyers for a boy who was shot at a Los Angeles high school blame a lack of security for allowing the gun to be smuggled into class.

Attorneys for Trendell Gholar argued Monday that last week's shooting at Gardena High School could have been avoided. School district officials have said the campus didn't make daily weapons checks of students.

Attorneys say they plan to file a damage claim with the Los Angeles Unified School District and will sue if it's rejected.

The 15-year-old boy was shot in the neck when a gun that a 17-year-old classmate allegedly brought in a backpack accidentally discharged. A 15-year-old girl shot in the head remains hospitalized.

The district says it's reviewing the circumstances surrounding the shooting.

Prosecutors and lawyers who handle public defense cases said yesterday they were surprised by Governor Deval Patrick’s plan to phase out the use of private attorneys and create a new state department with as many as 1,500 employees, with both sides saying there could be better ways to save the state money.

The governor’s plan calls for the hiring of 1,000 lawyers under a new Department of Public Counsel Services within the executive branch, with up to 500 more support staff. The administration estimates its plan will save $45 million by eliminating the Committee for Public Counsel Services in the judicial branch and wiping out hourly legal wages paid out to roughly 3,000 lawyers who work on contracts.

“In the face of the state’s new fiscal reality, we must change the way government does business to ensure we are stretching every taxpayer dollar as far as possible,’’ said Jay Gonzalez, secretary of administration and finance. “The governor’s proposal for reforming our system for providing legal counsel to indigent defendants is an example of exactly the type of change we need to be making. This reform will result in greater accountability, program integrity, and tens of millions in cost savings that will allow us to preserve indigent defense services and other critical programs and services throughout state government.’’

According to lawyers whose contracts are threatened by Patrick’s proposal, the plan will cost the state more than the current system, since salaried state workers will receive pensions and benefits.

“It is inconceivable that in this budget environment the administration would propose hiring 1,000 state employees with pensions, health insurance, benefits, overhead, and administrative costs,’’ said Benjamin Fierro, who represents the Association of Court Appointed Attorneys.

According to the administration, 28 states have public counsel systems similar to the one Patrick outlined yesterday, and Massachusetts is one of six states whose public defenders fall within the judiciary.

State Senator Cynthia Creem, Democrat of Newton, was noncommittal on whether it was a good idea to eliminate private attorneys from public counsel. As chairwoman of the Judiciary Committee, Creem is likely to play a role in the fate of Patrick’s plan. “I don’t think it should be a fait accompli,’’ she said, referring to the governor’s plan.

Creem said she wants more information on how much it will cost to set up the new department and how much might be saved. Creem said it was a good time for the state to look at the issue while reviewing both probation and parole departments.

“I am not convinced this is what we ought to do or not to do,’’ she said. “We need a lot more information.’’

The Committee for Public Counsel Services is an independent agency appointed by the Supreme Judicial Court. Last fall, district attorneys highlighted the disparity between the budgets for prosecutors and public defenders, sparking a contentious debate.

The budget for Public Counsel Services has risen dramatically in the last decade, prosecutors argued, gearing up for this budget season and presssing for more funding.

“We do not see how the governor’s proposal would save the money they are suggesting it would, unless you completely throw quality by the wayside,’’ said Anthony Benedetti, chief counsel for the committee.

Benedetti said it would create a system similar to other states where public defenders are overworked and bogged down with too many cases to effectively represent their clients. That would cost the state more money if more cases are sent to appellate court, he said.

The governor’s plan to fold the Committee for Public Counsel Services into the executive branch also could create legal conflicts of interest and complexities in criminal cases involving multiple defendants, he said.

Plus, the governor’s plan neglects to address what to do with noncriminal cases that private attorneys handle, such as mental health cases, hospital committal cases, or children in need of protective custody. The state could not act as both prosecutor and defense in such cases, Benedetti said.

Benedetti said CPCS lawyers have argued for years that the state could save money if it looked more closely at the number of cases coming into the system. Eligibility for free legal services, which is addressed in Patrick’s plan, needs to be looked at more closely, Public Counsel Services lawyers and prosecutors said.

District attorneys prosecute about 300,000 criminal cases annually with a collective budget of about $92 million, while the Committee for Public Counsel Services defends only about two-thirds of those cases but receives nearly twice as much, prosecutors said. The total budget for the committee is $201.7 million. It spends $130 million to represent criminal defendants and $62 million for noncriminal, family court, and mental health cases, according to the committee.

Sunday, January 23, 2011

Key state lawmakers say lawsuits over auto insurance disputes must be reined in and they will consider ways to cut back on the costly courtroom battles when they meet in March.

Auto premiums are going up in Florida, and one reason is the lawsuits, insurance regulators say.

"We've got to do something," said state Rep. Bryan Nelson, R-Apopka, chairman of the House insurance and banking subcommittee. "It's critical we really take a hard look at ways we can reduce the costs."

One proposal under consideration in Tallahassee is to limit the fees attorneys can collect when they win personal injury protection (PIP) suits. The fees can top $100,000 for disputes of a few thousand dollars or less, the Sun Sentinel reported this month.

"PIP has become a multibillion-dollar boutique industry," said Sen. Ellyn Bogdanoff, a Fort Lauderdale Republican who was a chief negotiator in legislation passed in 2007 that revised Florida's no-fault insurance system. "The whole purpose was to reduce the suits, and it's actually increased them."

"The people who are ultimately going to lose out are the Florida consumers," said Michael Gibson, an Orlando attorney who files PIP suits. "Insurance companies are going to delay paying bills that are owed, plain and simple."

All drivers in the state are required to carry PIP insurance, which pays up to $10,000 in medical expenses for injuries from car accidents.

Lawsuits are filed when insurance companies deny claims or underpay, even if by a few dollars. Insurers say they sometimes delay payment because accident victims and medical providers submit so many fraudulent claims.

On the other side, lawyers say insurers bring on the suits themselves by not paying what they owe and drive up legal costs by prolonging court cases.

Florida's top 10 auto insurers have raised their PIP insurance rates by as much as 83 percent over the past two years, state data show. The Office of Insurance Regulation plans to survey insurers about the costs of PIP claims and litigation for the upcoming legislative session.

In Broward County, the number of PIP suits increased 137 percent in 2010 over 2008. State Farm reported a similar increase statewide.

One Broward case involved a $2,000 award and $160,000 in attorneys' fees. It lasted 4 1/2 years.

"I think that PIP to a certain extent has gotten out of hand," said Rep. Mike Horner, R-Kissimmee. "There are some abuses. We'd like to take a look at how we can curtail those abuses."

Horner said he is working on a bill that likely would include some limit on attorneys' fees but that details have not been worked out.

"My goal is to lower folks' car insurance," he said. "This is driving costs up, and in this economy the citizens of Florida can't afford to pay excessive premiums."

Nelson, an insurance agent, said the Legislature limited attorneys' fees in workers' compensation cases in 2003 to a percentage of the benefits won.

"Workers' comp rates are down around 60 percent from what they were in 2003, and a good chunk of that is attorneys' fees," Nelson said. "I think if we can do attorney fees [in PIP cases] like workers' comp, that will help."

Lawyers who file PIP suits say any cap on fees will give insurers an unfair advantage in fighting the cases and create an incentive for them to deny more claims.

Bogdanoff, a lawyer, said lawmakers in 2007 had considered capping fees in PIP cases at three times the disputed amount or $10,000, whichever is greater.

"There are absolutely legitimate guys who practice in this field," she said. "The average fee is maybe $3,000 to $5,000. I think they could live with" that cap.

The cap proposed three years ago failed largely because of opposition by lawyers and other interest groups. The climate in Tallahassee has since changed, lawmakers said.

The Republican-controlled Legislature now appears more willing to consider changes to reduce excessive lawsuits, and Gov. Rick Scott singled that out as a priority in his inaugural address.

"It's going to boil down to, are we going to help our constituents reduce their premiums?" Nelson said. "We're not in a crisis but if we wait another year or two, we will be."

Edith Young is one South Floridian who wants legislators to rein in the lawyers who make a living suing over car accidents. The 85-year-old retired flight attendant from Plantation was in a "little fender-bender" in a parking lot in October.

"I've had four contacts from attorneys suggesting that I sue, and on the police report it clearly says no one was injured," Young said. "It's ridiculous."

A Times review of records show that the city of Vernon has spent more than $54 million on lawyers in the last five years.

Vernon's billing records were obtained by The Times through the California Public Records Act. The documents indicate that of the city's total legal bills since 2005, about $42 million went to private firms, while the rest went to the city's in-house legal department. The records do not break down what specific legal services the attorneys provided. By comparison, Long Beach spent $27 million on outside firms during that period. According to a report by The Times' Sam Allen and Hector Becerra:

The high level of spending has allowed Vernon to gather an army of legal talent that city officials deploy to protect their unusual municipality -- a largely industrial city south of downtown Los Angeles with fewer than 100 residents. Officials are counting on that legal acumen to help defeat a bill in the state Legislature that would disincorporate Vernon, putting its territory under the jurisdiction of Los Angeles County.

But now, the legal bills are threatening to become a liability. Critics, including Assembly Speaker John Pérez, argue that because the handful of people allowed to live in the city are beholden to city government, it cannot have proper checks and balances. They say Vernon is essentially run for the benefit of its officials and their allies. Large sums paid to the city's lawyers have been among the evidence critics cite.

Sunday, January 16, 2011

Highland Park man died a year ago, but his estate still owes $27 million

Katamanin say his adult sons continue to try to block them from sizing up and pursuing his remaining fortune.

But the creditors' lawyers this week gained what they say could be a powerful tool in their attempts to collect on an alleged $27 million in debt, winning the right to shine a light into his sons' bank accounts in search of the elite casino patron's remaining wealth.

When he died in Switzerland in December 2009, the globetrotting Russian-born multimillionaire left behind a raft of creditors who claim he spent the end of his life racking up nearly $10 million in debts at casinos in Las Vegas, Atlantic City, N.J., and the Bahamas, and a debt of almost $17 million from a high-interest loan given by a Caribbean lender.

The creditors' lawyers initially accused his sons, Alan and Dean, of improperly selling pieces of their father's fleet of luxury cars and boats. Alan Katamanin sold a 2004 Maybach 57 for about $110,000, and Dean Katamanin unloaded a 2007 Porsche 911 for nearly $78,000, their lawyer wrote in a letter to the estate administrator.

But their efforts to "conceal and hide" their father's wealth have continued, according to lawyers for Plymouth Consultants, the lender based in the British Virgin Islands that claims to have given Katamanin a $12 million loan in March 2008.

A Chase bank official told Plymouth's lawyers the sons have 15 bank accounts at that institution alone, the attorneys said, and the lawyers suspect the sons, both graduate students, may have opened bank accounts to store their father's wealth.

"What the heck is someone their age doing with 15 accounts?" asked John Kennedy, a lawyer for Plymouth.

The creditors' lawyers also argued the sons are trying to stymie them by objecting to motions and avoiding questioning on their father's wealth.

When the creditors' lawyers sought to examine the sons' bank records, the Katamanins' attorneys asked a judge to block access to the accounts, claiming the lenders were trying to "harass and violate the privacy" of the family. The sons' lawyers said they have no problem with the probe into the father's finances, but their personal accounts should be private.

Meg Hudgins, a lawyer for the sons, argued in court Thursday that the sons told her they don't have 15 accounts at Chase, and she said the request to inspect the sons' finances was too "burdensome" and "invasive" to grant.

Lake County Judge Diane E. Winter disagreed, and she ordered the production of Chase bank records going back to Jan. 1, 2007, though she ordered records showing the sons' personal financial information redacted and others sealed.

The Tribune first reported in August how Katamanin — said to be a commodities trader — whipped up a storm of debt before he died at 53 of a heart ailment. Prosecutors in Nevada said they had planned to charge him criminally with skipping out on his debts, but he died before they could.

Katamanin lived with his family on a compound of two mansions on a green slope overlooking Lake Michigan. Both houses are now for sale for a total of $12 million, according to online sales listings.

The $12 million loan from Plymouth has accrued at least $5 million in interest, according to court records. The company's lawyers have no idea what Katamanin did with the principal, and they have seen no trace of the money since he borrowed it, Kennedy said.

Creditors' lawyers fear Katamanin's remaining wealth is being depleted even as they try to size it up, they said.

"We'll never know how much has walked away already," said Robert Markoff, a lawyer for several of the casinos.

A lawyer for his widow, Lena, recently filed a claim for a spouse's award of more than $318,000 to last her nine months. Lena Katamanin, who is caring for a young daughter, asked for nearly $47,000 for housekeeping and gardening; $2,700 for aquarium maintenance; and nearly $37,000 for clothing. She asked for almost $43,000 for tuition and tutoring for Alan Katamanin, and $18,000 for camp and lessons for the daughter.

Winter did not rule on the award, but Kennedy said it seems "kind of high."

Lawyers for the widow and sons declined to comment outside of court. A man who answered the door at one of the mansions said none of the Katamanins were home. He wouldn't say when they might return or how they might be reached.

Barry Bonds' attorneys want to know why federal authorities did not prosecute his former business partner - likely a key government witness when the slugger goes to trial on perjury charges in March - after Bonds accused the man of stealing money and sports memorabilia from him in 2003.

In court papers filed by Bonds' defense team late Friday, the home run king's attorneys say they want any of the investigative reports and other documents that led to the government's decision not to further investigate Bonds' claims or prosecute his former partner and longtime friend, Steve Hoskins. The government's witness list says Hoskins will testify that Bonds admitted to him that he had used steroids.

"Hoskins is a key witness because this testimony, if believed, would likely be the most damaging evidence that could be admitted against Bonds, therefore any information that intends to impeach Hoskins is not only material, it is critical to the defense," Bonds' lawyers wrote.

Hoskins also secretly taperecorded Bonds' trainer, Greg Anderson, and in that recording Anderson allegedly describes the drug regimen he gave Bonds to beat Major League Baseball's steroid-testing program in 2003.

U.S. District Court Judge Susan Illston in San Francisco has already ruled that the jury cannot listen to large portions of the tape. In documents filed last week, Bonds' attorneys asked the judge to exclude the entire recording.

A second document filed by Bonds' attorneys late Friday was not immediately available.

The filing appears to be yet another attempt by Bonds' lawyers to limit the amount of evidence the government can introduce at his trial, scheduled to begin on March 21 in San Francisco.

The defense team has also asked Illston to bar testimony from Bonds' 2003 BALCO grand jury appearance that might alert the jury about doping calendars created by Anderson, who has steadfastly refused to testify against Bonds. A hearing on the evidence is scheduled for Friday.

In a 2006 interview with the Daily News, Hoskins' attorney Michael Cardoza said Bonds confided to Hoskins that he was using steroids.

Wednesday, January 12, 2011

Onetime Chicago Police commander Jon Burge, ousted from his police job in 1993, is asking a judge to limit his prison sentence in part because of his “dedication and service to this country.”

Burge, who is 63 and has cancer, called a recent calculation by federal prosecutors that he could face up to 30 years in prison “far-fetched.”

Burge was convicted last summer of perjury and obstruction of justice related to the way he gave answers in a lawsuit that claimed he and underlings tortured murder suspects who were in Chicago Police custody. He’s scheduled to be sentenced Jan. 20.

In a recent filing, Burge’s lawyers said he should get a break below the 15- to 21-month sentencing range recommended by the probation department. They offered up his tours of duty in Korea and Vietnam as part of the reasoning as well as his age and health.

“He attained the rank of staff sergeant and received the Bronze Star medal for actions taken in ground operations against hostile forces as well as four Army Commendation medals,” Burge’s lawyers wrote.

They were responding to a filing by prosecutors who called for a substantial sentence for Burge. They didn’t specify a recommended sentence but said he should face a range of up to 30 years in prison.

Meanwhile, attorneys in the case are scheduled to meet in court Wednesday as Burge’s lawyers ask that the judge in the case, U.S. District Judge Joan Lefkow, recuse herself from sentencing Burge. Lefkow testified in the 2004 trial of white supremacist Matthew Hale after she was the subject of Hale’s threat. The neo-Nazi was convicted of ordering a hit on Lefkow. The main prosecutor in the Hale case was also the chief prosecutor in Burge’s case and may have met with Lefkow to prep her testimony, Burge’s lawyers argued.

“The aforementioned prosecutor/judge relationship is of the type that reasonably calls the impartiality of the court into question,” Burge’s lawyers wrote.

Judy Clarke's client list reads like a Who's Who of America's most infamous murder and terrorism convicts, from Susan Smith, who ...

Judy Clarke's client list reads like a Who's Who of America's most infamous murder and terrorism convicts — from Susan Smith, who drowned her children, to "Unabomber" Ted Kaczynski, to the so-called 20th hijacker on Sept. 11, 2001.

While those defendants were convicted, Clarke, a federal public defender for Eastern Washington and Idaho from 1992 to 2002, has developed a reputation as an expert on asserting mental disability or defect as a defense, and has managed to keep many killers off death row.

Her newest assignment is Jared Lee Loughner.

"[Clarke] has stood up to the plate in the kinds of cases that bring the greatest disdain from the public," said Gerald Goldstein, a San Antonio lawyer who has known her for years.

She has an aversion to the news media and an unassuming courtroom style that masks an encyclopedic knowledge of criminal law. Her low-key style and pageboy haircut can make her seem at first to be a junior member of the legal team.

But lawyers who have worked with her say she is a master strategist in death-penalty cases.

"She is known for being the criminal defense lawyers' criminal defense lawyer," said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers.

The Federal Public Defender's Office in Arizona asked a Phoenix judge to appoint Clarke as the lead criminal defender for Loughner, 22, who faces the death penalty if convicted in the Tucson-area shootings that left six dead and 14 injured.

Heather Williams, first assistant federal public defender for Arizona, said Clarke was asked to take the case after her office found there could be an appearance of conflict because its attorneys practiced before U.S. District Judge John Roll, among those killed Saturday.

"We wanted to get someone who was not far away and who would not have a conflict of interest," Williams said. "She was available, she's experienced in death-penalty cases, and she was willing to undertake the representation."

Lawyers who have worked with Clarke describe her as a "straight-shooter" with little ego and no agenda other than defending clients. Most death-penalty cases she has handled, these lawyers said, resulted in plea agreements.

"She is able to defuse all the emotions that come with murder cases like this," said David Bruck, a law professor at Washington and Lee University in Lexington, Va., who worked with Clarke on the Smith defense. "She was able to bring Ted Kaczynski and [1996 Olympics bomber] Eric Rudolph to settlement and true finality instead of eye-gouging fights in the courts that can last for years."

Clarke's work on such cases began with the defense of Susan Smith in 1995. Smith, of Union, S.C., was accused of drowning her young sons by driving her car into a lake. The case garnered national attention because she told police that she had been carjacked and went on television to ask that her children be freed. She later confessed to the murders.

Clarke persuaded the jury not to impose the death penalty by arguing that Smith suffered from mental illness and the murders were the result of a botched suicide attempt. Smith was sentenced to life in prison.

Clarke returned her court-approved $82,944 fee to the state, saying it was needed for the defense of other indigent people facing charges.

She went on to represent Rudolph and al-Qaida terrorist Zacarias Moussaoui, who prosecutors said planned to join the 19 hijackers in the Sept. 11 attacks. The defendant's mental state also was a factor in those cases.

Clarke grew up in Asheville, N.C., in a conservative Republican family. She has said her parents tried to foster independent thinking. That came to the fore in the 1990s, when her mother, Patsy Clarke, helped lead a campaign to unseat longtime Sen. Jesse Helms, R-N.C.

Helms had infuriated the family by telling the Clarkes in a letter that a brother of Judy's, Mark Clarke, who had died of AIDS at 31, had "played Russian roulette in his sexual activity."

In recent years, Clarke has been in private practice in San Diego with her husband, former Gonzaga University law professor Thomas H. Speedy Rice, but has continued to take public-defender assignments.

Clarke did not respond to requests for comment, but friends said she would be drawn to the Tucson case. She opposes the death penalty, they said, not only as a political position but also because of her experiences delving into the tangled stories of her clients.

"Judy would probably say if the public saw everything she sees, it would look at the client or the case differently," Bruck said.

Sunday, January 9, 2011

Where have all the e-mails gone? That's the question attorneys representing the family of exotic dancer Tamara "Strawberry" Greene want answered as they wait for the city to deliver additional electronic files belonging to Detroit's ex-Mayor Kwame Kilpatrick.

In a motion filed Friday in U.S. District Court, Greene family lawyers, Norman Yatooma and Kirkland Garey, requested an independent expert inspection and analysis of Kilpatrick's home computer and the contents of two external hard drives, containing data downloaded from the city's servers, and external storage devices to recover any deleted data or files. And they want the city to pay for it.

The lawyers are trying to find e-mails received and sent by Kilpatrick from September 2002 through June 2003 to determine if there's any evidence that the former mayor or the city obstructed the investigation into Greene's death. She was killed in an unsolved drive-by shooting in 2003.

City officials provided two external hard drives, labeled "Mayor's backup," and two compact discs with files from Kilpatrick's missing office computer, according to the motion, but the additional requests have gone unanswered. James Thomas, Kilpatrick's attorney, has been in possession of the requested material to identify privileged content for redaction.

The city was ordered by a federal judge in early December to turn over e-mails from a city server for former Police Chief Ella Bully-Cummings, former Chief of Staff Christine Beatty, 36th District Court Judge Ruth Carter and two former Kilpatrick bodyguards. The motion states that e-mails from Bully-Cummings and the two bodyguards through November and December 2010 have been produced by the city.

Kilpatrick, who is in federal prison for violating probation, was accused of using the Kilpatrick Civic Fund charity as a personal resource for cash, trips, summer camp and anti-bugging equipment for his office. He was indicted June 23 on 19 fraud and tax counts.

In a separate case, a federal grand jury issued a 38-count indictment Dec. 15 that characterized his career in public service — from Lansing to Detroit — as a racketeering conspiracy. Members of the alleged conspiracy included his father, Bernard Kilpatrick, and three former top aides.

Marcus Moore has had his share of lawyers, so when he sought representation from Tahir Malik on nearly two dozen traffic and misdemeanor offenses, Moore didn't think it was necessary to question his credentials.

"He sounded like an attorney. He met with the state's attorneys before the judge came out, all that," said Moore, 29. "He walked around the courtroom like he was a hotshot, strutting around, you know. That really made me think the guy was a lawyer."

What Moore didn't know was that Malik apparently never spent a day in law school. But he knew his way around a courtroom because of his own lengthy arrest record, authorities believe.

Malik, 47, of Skokie, was charged Friday with posing as a lawyer while representing Moore and another client. He had already been charged last month with impersonating a lawyer in a third case.

But authorities believe he represented dozens of clients in recent years. Records found in Malik's possession last month connected him to at least 60 clients, they said.

"No one suspected anything for years because he did everything right — except obtain a law degree," said Cook County Sheriff Tom Dart. "From his own arrest history, he was familiar enough with the court system to make certain motions and file certain documents with this court."

Authorities alleged that Malik charged clients $500 to $4,500, depending on the type of case he was handling.

Malik's father, Rahim, said Friday that his son has been out of work for several years. Malik, his wife and son have been living with him, the father said.

"He knows the system, (but) he doesn't know the ABCs of the law," said the father, 76, who believes his son might have picked up some of his legal knowledge from watching television.

Nonetheless, Rahim Malik insists his son was only trying to help people.

Cook County sheriff's department investigators said Malik had been involved in dozens of traffic, mortgage foreclosure and low-level criminal cases in two suburban courthouses and the Daley Center.

Moore said he met with Malik at a Subway restaurant in Rogers Park in the spring of 2009 after learning of him from an inmate at Cook County Jail.

"At the time, I was fighting 19 cases and he told me to give him $4,500 and he'd get them all thrown out," Moore said.

In the end, Moore said, Malik took care of only one case by having him plead guilty to driving on a revoked license. He was sentenced to work 40 days in a sheriff's program designed for defendants to avoid jail.

Wednesday, January 5, 2011

When I first began practicing entertainment law in the late 1990s, the music industry was dealing with the crisis of illegal peer-to-peer downloading of music via websites like Napster, LimeWire and Kazaa. Now it seems the industry is facing another game-changing crisis: the extinction of the CD. With declining sales and the rise of digital downloading through iTunes and other outlets, we soon may refer to the CD in the same manner as we do the audio cassette, 8-track and vinyl record: outdated and an antique.

The debate about the demise of the CD doesn't seem to focus on "if," but only "when." In 1999, the Recording Industry Association of America reported that 938.9 million CDs were sold. This figure fell to 384.7 million in 2008. While there has been an obvious correlating increase in digital download revenue, it hasn't made up for the lost revenue from declining CD sales. So here lies the difficulty for music labels, artists and entertainment lawyers alike: How do we make money in this brave new entertainment world?

Many labels have resorted to "360 deals," a concept where high-stature artists like Jay-Z or Madonna sign a deal that allows a record label to participate in various income streams, including merchandising, tours, concerts, etc.

Where does this leave attorneys? There was a time when entertainment lawyers would see a new recording contract deal every week and spend countless weeks negotiating with the record label in the future release of a CD album. With 360 deals, there are fewer contracts to negotiate and review, and a reduced need for a lawyer's participation.

And so we must deal with this question: Where is the music industry going with the demise of these record labels in the traditional sense?

To answer this question, we first must accept the new reality. New technologies have made recording music less expensive and more practicable. Artists no longer need to be funded by a major record label to have their music recorded, and social networking sites like Facebook, MySpace and others have made direct artist-to-consumer distribution possible.

Even the most popular artists have found ways to bypass the record label by posting music videos online and receiving per-play licensing payments from video sites such as YouTube. Finally, mp3 downloading sites like iTunes have made access to music easier than ever, and allow consumers to pick and choose individual songs rather than purchasing an entire album for $19.99.

EMBRACING CHANGE

This still leaves us with the question of how major labels and artists can sustain revenues. My advice to players in this game would be: "If you can't beat 'em, join 'em." At this point, it is impossible to stop the demise of the CD, so it is up to record labels and artists to think of new and creative ways to make money. It seems as though record labels have begun to embrace this change.

But, lawyers are divided, with one thinking it's the end of an era, and others more optimistic.

Attorney Joel Katz of the Atlanta-based Greenberg Traurig LLP, and one of the top entertainment lawyers in the country, thinks the CD marketplace will be fine.

"I think the digitally distributed product has dramatically grown in the marketplace; however that doesn't mean the end of physical product," Katz said. "This type of musical product will have to be carefully marketed and differently promoted to survive in the general marketplace. But I believe both types of product will stabilize and do well."

However, Los Angeles-based attorney Courtney Coates has a slightly different view.

"I believe the CD will be increasingly marginalized to a great extent in the same way the tape cassette was marginalized by its successor, the compact disc," explained Coates, who operates the Law Offices of Courtney Coates on the West Coast. "Even moreso, the advent of digital medium has revolutionized the time, place, and manner in which we experience all forms of media, especially music."

While the debate goes on, labels are realizing it would be futile to attempt to pull a huge amount of copyrighted material from a site like YouTube. So, record labels appear to have begun negotiating their own licensing terms for the posting of songs and videos. Some solo artists, like Prince, have continually refused to post material on YouTube without negotiating a lucrative deal and being paid for copyrighted work.

A great example of an artist (or band, in this case) thinking of a creative way to stay on top was Radiohead in 2007. After its contract with EMI was terminated, Radiohead released the album "In Rainbows" over the Internet in 2007, inviting fans to pay what they wished. Though most fans downloaded the album without paying a penny, pre-release sales were more profitable than the total money generated from sales of Radiohead's 2003 album "Hail to the Thief."

The band also claims that the subsequent publicity increased sales when the album began being sold in stores a few months later. Upon its retail release, "In Rainbows" entered the UK Album Chart and the U.S. Billboard 200 at No. 1, and sold more than 3 million copies worldwide in digital and physical formats.

I tell clients that if they don't have a platinum-selling album (one million copies) or track record of success, the days of needing a record label may be over. You can put your music out over the Internet and make more money.

Perhaps the greatest challenge for the music industry is to predict future trends and get a piece of the action from the start. Many experts see one-stop-shopping multimedia outlets as the future of media, where a consumer can purchase mp3s, ringtones, movies, radio broadcasts, podcasts and more from a single location.

In addition, Apple is kicking around an idea for "cloud-based media hosting," where users can store their iTunes libraries on Apple's servers and stream directly to any Internet-connected device. Record labels intend to argue that this approach is not allowed under current licensing agreements and should come with an increase in compensation from Apple.

ROYALTY DISPUTES

While the music industry struggles to adapt, the field of entertainment law is growing exponentially. While this notion brings a smile to my face, it will nonetheless be a challenge to keep the law current with respect to such an amorphous subject area.

Illegal downloading continues to be a problem through torrent-based programs, which are harder to pinpoint because a downloader collects multiple parts of the file from different users as opposed to a single centralized server like Napster. Congress and the Justice Department are notoriously slow to react to this area of law, and lawmakers will be hard-pressed to find a solution.

In addition, disputes over artist royalties are likely to increase. Most of the songs created over the past 100 years were written during a time when the idea of transferring that song through the air to a handheld, cordless device for permanent storage would have been considered science fiction. As a result, many recording contracts are ambiguous with respect to digital downloads. This is where lawyers will need to brush up and be prepared for the legal fights to come in the courtroom.

The most recent case was a federal appeals court ruling in September in California. (FBT Productions v. Aftermath Records, 09-55817, 9th U.S. Circuit Court of Appeals). The court overruled a lower court ruling against rapper Eminem's former producers, FBT Productions LLC, in a claim brought against Aftermath Records, a unit of the Universal Music Group.

FBT Productions claimed that downloads fall under a "masters licensed" clause governing the label's licensing of the recordings to third parties, for which the artist gets a 50 percent royalty. Universal Music's lawyers argued that iTunes downloads were no different from retail sales of CDs. The standard recording contract's "records sold" provision typically stipulate much lower royalty rates.

A three-judge panel concluded: "[T]he agreements unambiguously provide that notwithstanding the records sold provision, Aftermath owed FBT a 50 percent royalty under the masters licensed provision ... because the agreements were unambiguous and were not reasonably susceptible to Aftermath's interpretation."

Although Universal claims the ruling applies only this one agreement, this case nonetheless provides an interesting precedent where a court was not shy about construing a contract in favor of an artist or producer when it comes to a royalties dispute. With the abundance of artists who signed recording contracts in the eras of vinyl record and audiocassette, we are likely to see more and more disputes over downloading royalties and copyright licensing.

So, as lawyers, we must learn everything we can about the digital laws, the Copyright Act and the intersection of music law and digital law. Specifically, for lawyers to navigate this rapidly changing digital highway, we will have to move away from the standard drafting of a 33-page recording contract and understand the nuances of a much smaller 10-page digital downloading contract.

Also, there is a hybrid of laws that will be triggered by this digital explosion. For example, there's international law, with music being downloaded overseas and the fees associated with that action. Then there are the copyright implications of posting music all over the Internet and managing the ultimate end-users liability.

Corporate law will be triggered as more music corporations will pop up online. It's just a matter of time before we see all types of tax issues when Uncle Sam wants to profit from this multi-billion dollar music industry commerce. And, of course, litigation will be the biggest area of growth as the digital landscape takes it shape and lawyers fight it out in protecting the music.

While many people view this new entertainment world as a treacherous and unknown landscape, others, however, see it as a new world full of opportunity. Those who keep their ear to the grindstone and stay ahead of the trends and technologies can develop a niche market for themselves and rise to the top of the industry.

In the meantime, Best Buy, Target and Walmart are going to have to figure out what to do with the space in their stores that is currently occupied by the CD section.

James L. Walker Jr. is an attorney and owner of Walker & Associates, based in Monroe, Conn. He represents hundreds of corporations, artists, songwriters, producers and small businesses, and is the author of the book, "This Business Of Urban Music." Walker & Associates attorney Michael D. Blumberg assisted with this article. Attorney Walker can be contacted at jwalker@walkerandassoc.com .

Federal prosecutors say they don't object to a delay of this month's scheduled trial of former high-flying Texas billionaire investor R. Allen Stanford but argue the two-year postponement sought by Stanford's lawyers would be far too long.

Defense lawyers should have additional time to prepare but they already have filed motions "covering most conceivable legal issues" in the case, Assistant U.S. Attorney Gregg Costa said Monday in a filing with U.S. District Court Judge David Hittner.

"The requested continuance of two years is excessive," Costa said, adding that such a delay would be inconsistent with the public's interest in a speedy trial for Stanford. "Stanford will use a lengthy continuance to further what appears to be his only goal in this case: obtaining pretrial release."

Stanford is accused of bilking investors out of $7 billion in a Ponzi scheme and was supposed to go on trial Jan. 24. An appeal by Stanford contends the January trial date already violates his interest in a speedy trial, Costa noted.

Hittner has scheduled a status conference for Thursday on claims from Stanford's lawyers, following an examination by a psychiatrist they selected, that their client is not competent to stand trial. Hittner, acting on a government request, authorized a second competency exam for Stanford. Results were ordered sealed.

Psychiatrists and prison officials were expected to appear at the Thursday hearing to help Hittner decide if Stanford should undergo further observation or move forward with trial.

In his most recent court filing, Costa recommended Hittner put off the trial set for later this month, resolve the competency issues and then set a firm trial date.

"The setting of a firm date, which should be much sooner than the two-year continuance the defense seeks, is in the best interests of the parties, the court, witnesses and victims," he said.

A gag order issued by the judge in September bars lawyers from publicly discussing the case outside the courtroom.

Stanford and three ex-executives of his now-defunct Houston-based Stanford Financial Group are accused of orchestrating a colossal pyramid scheme by advising clients from 113 countries to invest more than $7 billion in certificates of deposit at the Stanford International Bank on the Caribbean island of Antigua, promising huge returns..

Stanford's attorneys say he ran a legitimate business and didn't misuse bank funds to pay for what the prosecutors have said was a lavish lifestyle.

Stanford and the executives have pleaded not guilty to various charges, including money laundering and wire and mail fraud.

They are also fighting a Securities and Exchange Commission lawsuit filed in Dallas that makes similar allegations.

Stanford once was considered among the wealthiest men in the U.S. with an estimated worth topping $2 billion. He's been jailed since his indictment in June 2009. Since then, he's had a series of health problems, including a non-life-threatening aneurysm in his leg and a concussion and broken nose after getting into a jail fight in September 2009.

He lost a lawsuit last October to have his insurance company pay for his legal fees. Costa said in Monday's filing the defense request for a two-year trial delay was based on erroneous premises that his "game of 'musical attorneys'" - his current lawyers are his fifth set of lawyers - "are attributable to uncertainty over the insurance policy and not his ever-changing predilections" and that the case was so complicated it would require two years to prepare.

Costa said Stanford's attorney changes were "a problem of his own making" and his current legal team, court-appointed since he's been declared an indigent defendant - "greatly overstates the complexity of the case."

Saturday, January 1, 2011

Leading legal business development entrepreneurs Craig Levinson and Mike O'Horo are pleased to announce the launch of RainmakerVT, the first interactive online business development training program to aid attorneys in mastering the art of marketing, sales, and networking. RainmakerVT enables lawyers to learn and practice new techniques and tactics, get immediate feedback and coaching, and bolster their confidence in the privacy of a virtual world from any computer, 24 hours a day.

RainmakerVT was created by two of the legal industry's most respected innovators to address significant obstacles to business development for lawyers.

First, studies have shown that lawyers have an aversion to making mistakes in public. RainmakerVT allows lawyers to privately simulate various sales interactions and make choices that result in immediate feedback. Incorrect answers trigger a video popup in which a coach explains why a particular choice is not optimal, and directs lawyers to select another option.

Second, lawyers traditionally have not had enough real-world sales experiences to make them proficient in developing business. O'Horo and Levinson estimate that even when pursuing a strategically important new-business goal, attorneys commit an average of only three hours per week to it. Even if lawyers weren't so inhibited by fear of public mistakes, and all their business development activity yielded the maximum learning value, the minor time they spend doing so limits their learning and experience.

RainmakerVT is the future of business development training program for lawyers. Its interactive virtual training puts lawyers in a private environment where they manage an avatar through virtual networking events, sales calls, beauty contests and other marketing/sales activities.

"Virtual training overcomes the serious limitations of instructor-led training," O'Horo said. "It's scalable, i.e., available to all lawyers; it's affordable, available 24/7, measurable and consistent." Levinson adds, "According to Myers-Briggs, lawyers are strongly averse to being wrong publicly, so the virtual world allows them to learn, make mistakes privately, and practice before applying the skill in the real world."

RainmakerVT is also launching with a creative affiliate program looking to partner with other vendors in the legal space who understand the uniqueness of their approach and technology and can help explain the value of virtual training to their contacts.

For the original version on PRWeb visit: www.prweb.com/releases/prweb2011/1/prweb8041195.htm

Thomson Reuters' purchase of Pangea3 and Axiom Global's acquisition of LawyerLink reflect how alternatives to the traditional law firm are becoming increasingly attractive to buyers of sophisticated legal services.

Two recent mergers in the legal industry speak volumes about the forces reshaping the business of law at its highest levels. What's also notable is that neither deal involved large law firms.

Thomson Reuters, a media and information-services company, acquired Pangea3, a legal-process outsourcing firm with most of its lawyers in India, in November. A month earlier, Axiom Global Inc., which provides lawyers-for-hire to big corporations, bought another legal staffing company, LawyerLink.

The deals are not large; Axiom and LawyerLink didn't even bother issuing news releases. Yet the transactions reflect how alternatives to the traditional law firm are becoming increasingly attractive to buyers of sophisticated legal services in the post-financial-meltdown era.

"Sophisticated general counsels are trying to stretch their legal budgets," said William Henderson, a law professor at Indiana University, who specializes in legal labor markets.

LawyerLink, Pangea3 and other alternatives to law firms have been around for several years, but their business models have gained momentum since the recession because they have found ways to cut costs out of basic legal tasks.

Chicago-based LawyerLink started as a temp agency in 2005 but quickly started providing document-review services. One of the costliest parts of litigation is in the evidence-gathering stage, known as discovery, during which lawyers comb through mountains of documents, including e-mails and other electronic communications.

Jennifer Bertoglio, a lawyer who founded LawyerLink, said her company manages discovery less expensively than law firms. It's not just about paying her lawyers less. LawyerLink uses technology and quality-control processes borrowed from manufacturers to make document review more productive and with fewer errors, she said.

Mark Harris, chief executive of Axiom, said LawyerLink's attention to quality is what impressed him the most.

"There's often a stalemate between costs and quality," Harris said. "A lot of in-house lawyers think you have to give up one to get the other. The only way to break the stalemate is to radically improve the process."

Harris, himself a Big Law refugee, has focused on breaking down the traditional law firm model. He co-founded Axiom in 2000 with a handful of lawyers in New York who are sent to big companies to work for extended periods or parachute in for specific projects. Ten years later, Axiom has 350 lawyers across nine offices.

Companies such as Goldman Sachs and Accenture have been receptive because Axiom lawyers charge about $200 an hour, about half the average rate of associates at the largest firms outside New York.

Law firms have responded in different ways. Some have created a new class of lawyer known as the "staff attorney." The starting salary for staff attorneys is about $100,000. They don't have to work as many hours as associates, who often earn two or three times more, and staff attorneys are not on a partnership track.

At McDermott Will & Emery, staff attorneys handle document review and other discovery-related tasks, said co-Chairman Jeffrey Stone. The firm started with four staff attorneys 16 months ago and now has 50. The Chicago-based firm chooses to handle document review in-house rather than outsource the task because it exercises greater control over the quality of work and experiences less turnover among the attorneys, Stone said.

There is still the widely held belief among law firm partners and general counsels that outsourcers don't offer the same quality of work as law firms, Henderson said. The perception, right or wrong, has prevented outsourcing from becoming embraced in the legal industry. Only about 1% of the money spent on lawyers in the United States goes to outsourcers, according to various estimates.

But Thomson Reuters' acquisition of Pangea3, based in New York and Mumbai, appears to at least validate the business model. Lawyers in India charge $25 to $35 an hour for routine corporate work such as drafting contracts and complying with regulations, said Ganesh Natarajan, president and CEO of Mindcrest, a Chicago-based rival of Pangea3.

In announcing the deal, Thomson Reuters, which owns West, a legal publisher, said outsourcing would be key to helping law firms and their clients be more "responsive and cost-effective."

Henderson agrees: "This is the beginning of a wave that's only going to get bigger in the years to come."